Case No.: IT-04-84-PT

IN TRIAL CHAMBER II

Before:
Judge Carmel Agius, Presiding
Judge Hans Henrik Brydensholt
Judge Albin Eser

Registrar:
Mr. Hans Holthuis

Decision of:
3 May 2006

PROSECUTOR

v.

RAMUSH HARADINAJ
IDRIZ BALAJ
LAHI BRAHIMAJ

_________________________________

FURTHER DECISION ON LAHI BRAHIMAJ’S MOTION FOR PROVISIONAL RELEASE

_________________________________

The Office of the Prosecutor:

Mr. Gilles Dutertre
Mr. Philippe Vallieres-Roland
Mr. Anees Ahmed

Accused / Counsel for the Accused:

Ramush Haradinaj
Mr. Ben Emmerson
Mr. Rodney Dixon
Mr. Michael O’Reilly
Idriz Balaj
Mr. Gregor Guy-Smith
Lahi Brahimaj
Mr. Richard Harvey

BACKGROUND

The Trial Chamber’s First Decision Denying Provisional Release

  • On 3 November 2005, Trial Chamber II (“Trial Chamber”) of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991 (“Tribunal”) denied a motion for provisional release filed by one accused in this case, Lahi Brahimaj (“Accused”)1 In its Decision on Lahi Brahimaj’s Motion for Provisional Release (“First Provisional Release Decision”), the Trial Chamber found that the Accused had not discharged his burden of proof to satisfy the Trial Chamber that (i) he would appear for trial , if released, and (ii) he would not pose a danger to any victim, witness or other person, as required by Rule 65(B) of the Tribunal’s Rules of Procedure and Evidence (“Rules”).2

  • On 9 March 2006, upon an appeal filed by counsel for the Accused (“Defence”), the Appeals Chamber of the Tribunal revoked the Trial Chamber’s First Provisional Release Decision and remitted the case to the Trial Chamber for further consideration in accordance with the Appeals Chamber’s Decision. The Trial Chamber was furthermore instructed to take into account additional evidence adduced by both the Defence and the Office of the Prosecutor (“Prosecution”) which had been admitted on appeal .3

  • Specifically, the Appeals Chamber directed the Trial Chamber to

    a. Take into account the factors set out above which the [First Provisional Release] Decision failed to consider, such as, the [Accused’s] cooperation with the Prosecution ;

    b. Re-examine the finding concerning the “vagueness” of the [Accused’s] plans, subject to the findings in paragraphs ten and eleven of the present Decision;

    c. Re-examine its findings concerning the question of witness intimidation; to this end the Trial Chamber may issue any such orders as it deems necessary for the purpose of availing itself of the evidence required to establish whether the [Accused] poses any threat to witnesses or any other persons.4

    Proceedings on Re-examination

    The Parties

  • On 14 March 2006, the Trial Chamber invited the Defence and the Prosecution (“Parties”) to submit additional observations regarding the Accused’s request for provisional release in light of the Appeals Chamber Decision.5

  • On 28 March 2006, the Prosecution submitted such additional observations (“ Prosecution Additional Submissions”)6in which it maintains the arguments made in response to the Accused’s initial motion for provisional release. The Prosecution specifically submits that the Trial Chamber , in re-examining the Accused’s request, should deny provisional release for the reason that he would pose a danger to others.7

  • On 30 March 2006, two days after the expiry of the time-limit set by the Trial Chamber to file additional observations, the Defence filed a motion to strike the Prosecution Additional Submissions (“Defence Additional Submissions”), which also contained substantive submissions in response.8In support of its request to strike, the Defence argues that the Prosecution Additional Submissions are repetitive and thus not in compliance with the Trial Chamber’s instructions to submit additional observations. Should the Trial Chamber decide not to strike the Prosecution Additional Submissions, the Defence requests to treat its submissions as the response to the Prosecution Additional Submissions.9

  • On 6 April 2006,10the Prosecution and on 13 April 2006,11 the Defence filed further submissions, in which they essentially argue about the admissibility of the Defence Additional Submissions under the Rules.

  • Regarding the Defence request to strike the Prosecution Additional Submissions , the Trial Chamber recalls that its invitation to submit additional observations was prompted by the emergence of new evidence on appeal which had hitherto not been considered by the Trial Chamber, rather than by a need to hear de novo submissions by both Parties on the Accused’s request for provisional release. Although the Defence correctly states that the Prosecution Additional Submissions, to some extent, contain arguments raised in earlier submissions, the Trial Chamber does not find them to be purely repetitive.12 In no event , it is warranted to strike out the entire Prosecution Additional Submissions.

  • As to the question how the Defence Additional Submissions should be treated , the Trial Chamber notes that these submissions were not filed within the deadline prescribed by the Order of 14 March 2006. The Prosecution rightly observed that the Trial Chamber did not envisage the filing of a response to the other Party’s additional submissions in its Order of 14 March 2006. However, the Trial Chamber finds that it is in the interest of justice to consider the substantive arguments contained in the Defence Additional Submissions, and not to dismiss them on procedural grounds.13

    UNMIK

  • In the context of whether the Accused would pose a danger to third persons if he were to be released, both parties had referred to information purportedly contained in a murder investigation case file maintained by the United Nations Interim Mission in Kosovo (“UNMIK”). On 14 March 2006, the Trial Chamber requested UNMIK to submit this case file to the Trial Chamber for its exclusive perusal. On 21 March 2006, UNMIK submitted the relevant case file confidentially and ex parte for the exclusive use of the Trial Chamber. UNMIK also stated that any release of information contained therein beyond the Trial Chamber may not occur without express approval.

  • As the Defence had requested access to the relevant information contained in this case file,14 on 3 April 2006, the Trial Chamber provided UNMIK with an own executive summary of this information . Upon receipt of UNMIK’s authorisation, the Trial Chamber envisaged making available this summary to both parties for their observations.15 However, in a letter dated 13 April 2006, UNMIK informed the Trial Chamber that it could not agree to the release of this executive summary due to prevailing concerns of confidentiality and security.

  • Hence, the Trial Chamber is not in a position to grant the Defence request for access to the UNMIK case file.

    THE LAW

  • Article 21 of the Statute of the Tribunal is entitled “Rights of the accused ” and provides, in relevant part:

    1. All persons shall be equal before the International Tribunal.

    ...

    3. The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute.

    ...

  • Rule 65 of the Rules governs provisional release. The relevant part of the provision reads:

    (A) Once detained, an accused may not be released except upon an order of a Chamber .

    (B) Release may be ordered by a Trial Chamber only after giving the host country and the State to which the accused seeks to be released the opportunity to be heard and only if it is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person.

    ...

  • The burden of proof is upon the Accused to satisfy the Trial Chamber that, if released, he will appear for trial and will not pose any danger to victims, witnesses or other persons.16 Where a Trial Chamber finds that one of the two conditions mentioned in Rule 65(B) has not been met, it need not consider the other and must deny provisional release.17

  • Whereas a Trial Chamber is not obliged to deal with all possible factors which a Trial Chamber can take into account when deciding whether it is satisfied that, if released, an accused will appear for trial,18 it suffices to indicate all the relevant factors that the Trial Chamber has taken into account in reaching its decision, i.e., it must render a reasoned opinion.19

    SUBMISSIONS

    Whether the Accused will appear for trial

  • In its initial “Defence Motion on Behalf of Lahi Brahimaj for Provisional Release ” (“Initial Motion”) of 16 September 2005, the Defence argued that the circumstances of the Accused’s voluntary surrender provide indication as to how he would conduct himself, if granted provisional release.20 Furthermore, the Defence claimed that the Accused demonstrated an exemplary degree of co-operation with the Prosecution ever since he became aware that investigations were being pursued against him, having voluntarily agreed to be interviewed by Prosecution representatives prior to being indicted.21 The Accused also provided a solemn undertaking to fully comply with all orders, terms and conditions imposed by the Tribunal in connection with his provisional release,22 as well as with two references attesting to his personal and professional integrity.23 Concerning the ability of the authorities of the state to which the Accused seeks to be released to detain him, the Defence submitted that UNMIK possesses the ability to monitor and report on compliance with the terms of provisional release.24 Moreover, the fact that the Accused, if convicted, may face lengthy incarceration , cannot in itself justify long periods of pre-trial detention.25

  • In response,26 the Prosecution challenged the assessment that the Accused would re-appear for his trial, if released . In particular, it was argued that the Accused had offered little or no specification regarding the studies he intends to pursue at the University of Pristina/Prishtinë , or how he would earn a livelihood,27 and that his alleged co-operation with the Prosecution in form of a voluntary interview was nullified by the fact that he remained silent when being asked about activities of the Kosovo Liberation Army (“KLA”).28

  • In the First Provisional Release Decision, the Trial Chamber was not satisfied that the Accused had shown that he would appear for trial, and stated as follows :

    CONSIDERING the vagueness of the Accused’s plans, if granted provisional release, and the uncertainty about his ability to earn a livelihood;

    CONSIDERING that it cannot be said that the Accused co-operated fully and in a meaningful way with the Prosecution during a voluntary interview in December 2004, as far as he remained silent to questions touching upon areas outside his own criminal responsibility;29

  • The Appeals Chamber allowed the Defence appeal against the Trial Chamber’s finding in this respect, stating that

    [the Trial Chamber’s First Provisional Release Decision] provides no reasons explaining how the uncertainty of the Appellant’s ability to earn a livelihood, and the vagueness of his plans would have an impact upon the likelihood that he would not appear for trial if provisionally released.30

    and

    the Trial Chamber appears to have reached its finding concerning the [Accused’s] cooperation by assessing solely the value of the information provided, rather than the interview and voluntariness thereof and is therefore in direct conflict with the International Tribunal’s jurisprudence.31

  • During the appellate proceedings, the Defence had adduced an affirmation by counsel and a letter by a representative of the University of Pristina/Prishtinë pursuant to Rule 115 of the Rules.32Both documents provide further specification regarding the Accused’s ability to support himself and the prospects of his future studies.

  • Neither Party made additional submissions during the re-examination proceedings on the issue of whether the Accused would appear for his trial, if provisionally released.

    Whether the Accused will pose a danger to victims, witnesses or other persons

  • In its Initial Motion, the Defence argued that since his first becoming aware of the Prosecution’s investigations against him some months prior to his indictment , the Accused had not interfered unduly with anyone.33The Accused denied specific allegations that he had done so.34

  • In response, the Prosecution contended that there were several instances of witness intimidation by the Accused, and that the record of one such incident is kept under seal by UNMIK.35 Combined with the volatile situation prevailing in Kosovo for witnesses and victims, the Prosecution submitted, the Trial Chamber could not be satisfied that the Accused would not pose a danger for others if released.36

  • In the First Provisional Release Decision, the Trial Chamber was not satisfied that the Accused had shown that he would not pose a danger to anyone, and held the following:

    FINDING that, although a general fear of intimidation and threatening of witnesses cannot in itself constitute a ground for denying provisional release, the volatile situation in Kosovo makes the possibility that such incidents might occur so vivid that it calls for specific caution when deciding on provisional release;

    FINDING that, although it has not been verified that the Accused threatened or exercised pressure on victims or potential witnesses, and even if such an incident did occur prior to the date when the indictment against the Accused was confirmed , these allegations by the Prosecution are very serious and the Trial Chamber cannot completely disregard them when it is now called upon to exercise its discretion on whether to grant provisional release;37

  • The Appeals Chamber also allowed the Defence appeal against the Trial Chamber’s findings in this respect, stating that

    [b]ecause the allegations of witness intimidation by the [Accused] that were given weight by the Trial Chamber were based in part on the UNMIK documents whose relevance was called into question by this additional evidence, and were supported in part by the letter from UNMIK whose relevance also has been called into question by the additional evidence, the Appeals Chamber believes that the Trial Chamber should reconsider the issue of witness intimidation.38

  • During the appellate proceedings, the Prosecution had adduced three documents pursuant to Rule 115 of the Rules39 in relation to the contents of the confidential UNMIK file.

  • The Prosecution Additional Submissions maintain that the Accused was involved in several instances of witness intimidation,40which is disputed by the Defence.41 As mentioned earlier, on 21 March 2006, UNMIK submitted to the Trial Chamber ex parte the case file allegedly containing substantiation for one such incident .42

    DISCUSSION

    Whether the Accused will appear for trial

    The Accused’s plans, if provisionally released, and his ability to earn a livelihood

  • Initially, the Prosecution argued that the Accused provided little or no specification regarding the studies he intends to pursue at the University of Pristina/Prishtinë, or how he would earn a livelihood. The Trial Chamber takes note of the evidence adduced by the Defence on appeal, namely, affirmation by counsel to the effect that the Accused’s extended family would provide support as necessary to enable him to resume full time studies43 and a letter by the University of Pristina/Prishtinë confirming and providing details of the Accused’s enrolment.

  • The Trial Chamber finds that in light of concrete evidence of the Accused’s post-release plans, including his ability to earn a livelihood, no substantial incentive remains for him to abscond.

    The Accused’s co-operation with the Prosecution

  • The Trial Chamber notes that in December 2004, the Accused voluntarily made himself available for an interview with Prosecution investigators. The Prosecution initially submitted that this co-operation was invalidated by the fact that the Accused remained silent on all matters concerning the KLA. In light of the Appeals Chamber Decision, the Trial Chamber acknowledges that the Accused’s presence at the said interview is indicative of some degree of co-operation with the Prosecution , notwithstanding the results of the questioning and the value for the Prosecution of the information obtained from the Accused during this interview.

    Other factors

  • The Trial Chamber further notes the circumstances of the Accused’s surrender to the Tribunal, as well as the guarantees offered by UNMIK in its letter of 11 October 2005 confirming its ability and willingness to detain the Accused, should he try to abscond. Moreover, the Trial Chamber notes two reference statements given by a Lieutenant General in the Kosovo Protection Corps and by the former Prime Minister of Kosovo, who describe the Accused as a man of integrity with respect for the rule of law.

    Conclusion as to whether the Accused will appear for trial

  • In light of the new evidence presented, the Trial Chamber finds that the Accused has demonstrated that he will appear for trial, if granted provisional release.

    Whether the Accused will pose a danger to victims, witnesses or other persons

  • In spite of the finding that the Accused has met his burden of proof regarding the first prong of Rule 65(B) of the Rules, the Trial Chamber must re-examine whether the same holds true for the second prong, namely, whether the Accused would pose a danger to victims, witnesses or other persons.

    Evidence suggesting that the Accused has interfered with others

  • The Prosecution submits that “the personal conduct of the Accused provides a perfect illustration of [a] climate of intimidation of victims”,44 referring to several alleged incidents of witness interference by the Accused.

  • Based on a statement given by a potential witness in the instant case (“X”), the Prosecution alleges some time in May 2004, the Accused approached X and asked him whether he had agreed to be a witness in the ‘Dukagjin case’.45 According to X, the Accused advised him to refrain from giving a witness statement and uttered threats against the life of X and his family. It appears that X was able to identify the Accused from a group of photographs. The Accused denies his involvement in the incident.46

  • The Prosecution further alleges that the Accused poses a threat to another potential witness in this case (“Y”). According to a statement given by Y, he and the Accused accidentally met in a restaurant in 2001. Although there was only a superficial exchange of words between the two, Y claims that the Accused would like to see him “eliminated” and that this is commonly known in the area. By contrast , the Defence submits that nothing in the statement of Y suggests improper conduct by the Accused.47

  • Finally, the Trial Chamber notes that a similar incident of alleged interference by the Accused is contained in the UNMIK file, with which the Trial Chamber was provided ex parte. Because UNMIK has not given authorisation to reveal this information, the Trial Chamber is not in a position to set out this incident in further detail.

    Evaluation of the evidence

  • The Trial Chamber recalls that the Prosecution has provided ample evidence that intimidation of witnesses in Kosovo and even attacks on their lives constitute a recurrent problem.48 The Trial Chamber has previously exercised caution not to draw inferences from this volatile situation to the detriment of an accused when there was no information that this accused had engaged in improper activities in this regard.49 Likewise, the Trial Chamber does not consider that the mere expression of generalised concerns or subjective fears of witnesses, justified as they may be, meet the requirements to establish that an accused would indeed pose a danger to others, if released.50 At the same time, the Trial Chamber believes that the threshold for these requirements must not be set too high; else, it would never be met.51 This is particularly true in an environment which is hostile to witnesses who are willing to give evidence in criminal proceedings.

  • The Trial Chamber notes that it is alleged that the Accused issued threats directly against potential witness X in May 2004. While the Trial Chamber attaches less weight to the allegations made by Y against the Accused due to their generalised nature, it observes that the UNMIK file contains an allegation of more concrete interference by the Accused on a third occasion.

  • The Trial Chamber finds that the totality of this evidence, as opposed to each of these incidents considered in isolation, raises a substantial doubt that the Accused, were he granted provisional release, would conduct himself in a way so as not to pose a threat to victims and potential witnesses in his case.

    CONCLUSION

  • On the basis of the evidence adduced, and in light of the Appeals Chamber Decision , the Trial Chamber finds that the Accused has not discharged his burden of proof that, if released, he would not pose any danger to victims, witnesses or other persons .

  • For the foregoing reasons, the Trial Chamber DENIES the Motion by the Accused for provisional release.

    Done in English and French, the English version being authoritative.

    Dated this third day of May 2006
    At The Hague
    The Netherlands

    ____________________________
    Carmel Agius
    Presiding Judge

    [Seal of the Tribunal]



    1 - “Decision on Lahi Brahimaj’s Motion for Provisional Release”, 3 November 2005.
    2 - First Provisional Release Decision, pp. 5-6.
    3 - “Decision on Lahi Brahimaj’s Interlocutory Appeal Against the Trial Chamber’s Decision Denying his Provisional Release”, 9 March 2006 (“Appeals Chamber Decision”).
    4 - Appeals Chamber Decision, para. 31. 2
    5 - “Order to Parties and Request to UNMIK”, 14 March 2006 (confidential). The Trial Chamber ordered the Parties to make additional observations by not later than 28 March 2006.
    6 - “Confidential Prosecution’s Additional Submissions on the Accused Brahimaj’s Request for Provisional Release With Ex Parte Annex A”, 28 March 2006.
    7 - Ibid., para. 4.
    8 - “Confidential Motion on Behalf of Lahi Brahimaj to strike ‘Confidential Prosecution’s Additional Submissions on the Accused Brahimaj’s Request for Provisional Release’, Filed on 28 March 2006. In the Alternative, Motion to Treat the Instant Motion as Defence Response to the Prosecution’s Additional Submissions on the Accused Brahimaj’s Request for Provisional Release”, 30 March 2006.
    9 - Ibid., paras 5, 18.
    10 - “Confidential Prosecution’s Response to the ‘Confidential Defence Motion on Behalf of Lahi Brahimaj to Strike ‘Prosecution’s Additional Submissions on the Accused Brahimaj’s Request for Provisional Release’ Filed on 28 March 2006, in the Alternative Motion to Treat the Instant Motion as Defence Response to the Prosecution’s Additional Submissions on the Accused Brahimaj’s Request for Provisional Release’ Dated 30 March 2006”, 6 April 2006.
    11 - “Confidential Reply by the Defence for Lahi Brahimaj to ‘Confidential Prosecution’s Response to the ‘Confidential Defence Motion on Behalf of Lahi Brahimaj to Strike ‘Prosecution’s Additional Submissions on the Accused Brahimaj’s Request for Provisional Release’ Filed on 28 March 2006, in the Alternative Motion to Treat the Instant Motion as Defence Response to the Prosecution’s Additional Submissions on the Accused Brahimaj’s Request for Provisional Release’ Dated 30 March 2006’, Dated 6 April 2006”, 13 April 2006.
    12 - For instance, paras 12-14 of the Prosecution Additional Submissions contain previously redacted information from witness statements regarding allegations of threats by the Accused against potential witnesses.
    13 - See also Rule 127(A) of the Rules, which provides: “[...] a Trial Chamber may, on good cause being shown by motion [...] (ii) recognize as validly done any act done after the expiration of a time so prescribed on such terms, if any, as is thought just and whether or not that time has already expired.”
    14 - Defence Additional Submissions, para. 11. The Defence conceded that redactions might be appropriate if considerations of confidentiality and security so require.
    15 - “Confidential Request to UNMIK With Confidential and Ex Parte Annex”, 3 April 2006.
    16 - Prosecutor v. Prlic et al., Case No. IT-04-74-AR65, “Decision on Motions for Re-Consideration, Clarification, Request for Release and Applications for Leave to Appeal”, 8 September 2004, para. 28.
    17 - See, e.g., Prosecutor v. Ljube Boskoski and Johan Tarculovski, Case No. IT-04-81-AR65.2, “Decision on Ljube Boskoski’s Interlocutory Appeal on Provisional Release”, 28 September 2005 (“Boskoski Provisional Release Decision”), para. 24.
    18 - Prosecutor v. Sainovic & Ojdanic, Case No. IT-99-37-AR65, “Decision on Provisional Release”, 30 Oct. 2002, para. 6.
    19 - Ibid.
    20 - Initial Motion, para. 11.
    21 - Initial Motion, para. 14.
    22 - Initial Motion, Annex A.
    23 - Initial Motion, paras 15, 16 and Addendum to Initial Motion of 10 October 2005, containing an undated letter of Bajram Kosumi (Prime Minister of Kosovo) and a letter of 30 September 2005 signed by Agim Çeku (Lieutenant General in the Kosovo Protection Corps).
    24 - Initial Motion, para. 12.
    25 - Initial Motion, para. 10.
    26 - “Réponse du Procureur à la Demande de Mise en Liberté Provisoire Déposée par Monsieur Brahimaj le 16 Septembre 2005 avec les Annexes A-R”, filed confidentially by the Prosecution on 17 October 2005 (“Initial Response”).
    27 - Initial Response, paras 51-55.
    28 - Initial Response, para. 22.
    29 - First Provisional Release Decision, p. 6.
    30 - Appeals Chamber Decision, para. 10.
    31 - Ibid., para. 18.
    32 - “Decision on Lahi Brahimaj’s Request to Present Additional Evidence Under Rule 115”, 3 March 2006.
    33 - Initial Motion, para. 19.
    34 - Initial Motion, paras 20-21.
    35 - Initial Response, paras 41-44.
    36 - Initial Response, paras 35-39.
    37 - First Provisional Release Decision, p. 6.
    38 - Appeals Chamber Decision, para. 29.
    39 - See fn. 30, supra.
    40 - Prosecution Additional Submissions, paras 3, 12-17.
    41 - Defence Additional Submissions, paras 13, 14.
    42 - See paras 9-11, supra.
    43 - “Affirmation by Counsel for Lahi Brahimaj in Support of Defence Application Under Rule 115 to Present Additional Evidence on Appeal Against the Trial Chamber’s Decision of 3 November 2005 Denying Provisional Release to the Accused Lahi Brahimaj”, 15 November 2005, paras 14-15.
    44 - Prosecution Initial Response, para. 40.
    45 - The term ‘Dukagjin’ designates the western part of Kosovo, which is the geographical area underlying the indictment in the present case.
    46 - Defence Additional Submissions, para. 12.
    47 - Ibid., para. 14.
    48 - Prosecution Additional Submissions, para. 9. See also Decision on Ramush Haradinaj’s Motion for Provisional Release, 6 June 2005 (“Haradinaj Provisional Release Decision”), para. 44.
    49 - Haradinaj Provisional Release Decision, para. 48.
    50 - Prosecutor v. Jovica Stanisic, Case No. IT-03-69-PT, “Decision on Provisional Release”, 28 July 2004, para. 35.
    51 - See, e.g., Boskoski Provisional Release Decision, paras 19-20.